Dual Property Group Pty Ltd v Blacktown City Council

Legislation Cited: Civil Procedure Act 2005, ss 64, 65(2)(b)
Environmental Planning and Assessment Act 1979, s 8.7
Land and Environment Court Act 1979, s 39(2)
Environmental Planning and Assessment Regulation 2021, ss 23(1), 37, 38(1)
Uniform Civil Procedure Rules 2005, r 19.2

Cases Cited: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112
Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223
Greenwood v Papademetri [2007] NSWCA 221
IGS Enterprises Pty Ltd v Hornsby Shire Council (2008) 164 LGERA 424; [2008] NSWLEC 304

Category: Procedural rulings

Parties: Dual Property Group Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation: Counsel:
C Gough (Solicitor) (Applicant)
M Lewis (Solicitor) (Respondent)
Solicitors:
Storey & Gough Lawyers (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s): 2024/389602

Publication restriction: Nil

Ex Tempore JUDGMENT

A Proponent Seeks to Substitute the Applicant

1. Dual Property Group Pty Ltd was incorporated on 19 December 2013 (“Dual Property”). Joshua Vrsaljko is the sole director of Dual Property.

2. On 12 October 2022 Moo Corporation Pty Limited (“Moo”) entered into a put and call option deed with Dual Property to acquire the property at 86 Rouse Road, Rouse Hill (“the land”) from the owner of the land, Joseph Spiteri. Vrsaljko is also the sole director of Moo.

3. On 5 March 2024 Dual Property, as applicant, lodged through the NSW Planning Portal development application DA-24-00483 with Blacktown City Council (“the Council”), for an integrated housing development comprising of demolition, Torrens title subdivision, road works and associated site works in respect of the land (“the DA”).

4. The lodgement of the DA by Dual Property was in error because Spiteri had only consented to Moo making an application with respect to the development of the land, and not Dual Property.

5. On 21 October 2024 Dual Property commenced Class 1 proceedings as a result of the Council’s deemed refusal of the DA.

6. A conciliation conference was held between Dual Property and the Council on 15 July 2025, but because no agreement was reached the conference was terminated. The proceedings are presently ready to be listed for hearing.

7. On 12 September 2025 Dual Property was placed into external administration.

8. By notice of motion filed on 27 November 2025, Dual Property seeks an order that Moo be substituted for Dual Property as “the Applicant” in the Class 1 appeal.

9. In support of the application, Dual Property relied upon affidavits filed by Christopher Gough, sworn 2 February 2026, and Joshua Vrsaljko, sworn 2 February 2026. Gough is the solicitor acting for Dual Property.

10. Both Gough and Vrsaljko deposed that it was the intention that Moo and not Dual Property be the applicant, and that lodging the DA in the name of the latter was a mistake made by the town planner engaged by Vrsaljko to prepare the DA. Further, when Dual Property was placed into liquidation, Vrsaljko instructed Gough to substitute Moo as the applicant, but Moo had been deregistered on 4 May 2025 due to an issue with respect to the payment of annual registration fees, which has subsequently been rectified with Moo being re-registered.

11. In addition to the affidavits referred to above, Dual Property relied upon a brief statement of agreed facts and a letter evidencing Spiteri’s consent to the proposed development as described in the DA.

Issues Raised by the Motion

12. Dual Property initially only sought to substitute Moo as the applicant to the Class 1 appeal. However, this course of action would immediately have given rise to issues of standing because the applicant to the appeal would not be the same entity as the applicant named in the DA.

13. After some discussion, it became apparent that Dual Property sought substitution of the applicant to the DA and a concomitant substitution of the applicant to the Class 1 application.

14. This gives rise to issues of power: first, the power of the Court to amend the DA in the manner proposed; and second, the power of the Court to amend the Class 1 application.

Power of the Court to Amend the DA and the Class 1 Application

15. Somewhat appositely, it has been observed that it is “trite” that a court must be satisfied that it has jurisdiction to grant the relief sought (AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 at [10]). It is therefore convenient at this juncture to identify the legislative framework necessary to resolve the two questions, and in particular, the statutory power conferred, if any, on the Court to substitute the applicant.

16. Section 23(1) of the Environmental Planning and Assessment Regulation 2021 (“EPA Regulations”) provides as follows:

23 Persons who may make development applications

(1) A development application may be made by—

(a) the owner of the land to which the development application relates, or

(b) another person, with the written consent of the owner of the land.

17. During the course of the application, a document was furnished to the Court providing written consent of the owner of the land to the development. The absence of the owner’s consent in writing can be cured at any time until the determination of the DA (IGS Enterprises Pty Ltd v Hornsby Shire Council (2008) 164 LGERA 424; [2008] NSWLEC 304 at [16]). This has now occurred.

18. In this context, it should be recalled that s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPAA”) states that:

8.7 Appeal by applicant—applications for development consent

(1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

19. The text of s 8.7 is instructive. It is only the dissatisfied “applicant for development consent” who may appeal to the Court against the determination of a development application. In this case, that is Dual Property and not Moo. Moo was not the applicant for the development consent. It therefore has no standing in the Class 1 appeal and the Court cannot, as was initially urged upon it, merely substitute Moo for Dual Property in the Class 1 application to cure the problem of the wrong entity having been named as the proponent in the DA.

20. What is required, therefore, is amendment of the DA with respect to the named applicant.

21. Section 37 of the EPA Regulations expressly permits amendments to be made to development applications:

37 Amendment of development application

(1) An applicant may, at any time before a development application is determined, apply to the consent authority for an amendment to the development application.

(2) The application must be made on the NSW planning portal.

…

(7) A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.

22. Section 38(1) of the EPA Regulations confers upon the consent authority the function or discretion of approving or rejecting an application for an amendment to a development application:

38 Determination of application for amendment of development application

(1) The consent authority may, through the NSW planning portal, approve or reject an application for an amendment to a development application submitted under section 37.

23. Importantly, because the Court sits as the consent authority for the purpose of the Class 1 appeal, the Court can exercise this discretionary power by operation of s 39(2) of the Land and Environment Court Act 1979 (AQC Dartbrook at [258]).

24. If it is accepted that an applicant is not confined to the person or entity who signed the form of the development application lodged with the consent authority (Beto**huwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [42]), there is, subject to any existing statutory constraints, no reason in principle why a development application cannot be amended to change, by way of substitution, the name of applicant to it.

25. Contrary to the submissions of Dual Property, neither s 64 nor s 65 of the Civil Procedure Act 2005 (“CPA”) assists it absent initial amendment of the DA in the manner proposed above.

26. Section 64 of the CPA provides that:

64 Amendment of documents generally

(1) At any stage of proceedings, the court may order—

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate.

27. Section 65(2)(b) of the CPA states:

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as—

…

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party…

28. Pt 19 of the Uniform Civil Procedure Rules 2005 (“UCPR”) also permits amendments to originating processes, including amendments to remove or add parties. Rule 19.2 of the UCPR provides:

19.2 Amendments to add or remove parties

(1) Subject to subrules (2) and (3), the amendments that may be made under rule 19.1 include an amendment that would have the effect of adding a party to, or removing a party from, the proceedings.

(2) An amendment that would have the effect of adding a person as a plaintiff in proceedings in which a solicitor is acting for the current plaintiff may not be made unless, at the time the amendment is made, the same solicitor—

(a) is acting for the person to be added, and

(b) certifies on the amended document—

(i) that he or she is acting for the person to be added, and

(ii) that the person to be added consents to being added as a plaintiff…

29. But neither ss 64, 65 nor Pt 19 of the UCPR, apply to allow the amendment of the DA. These provisions are directed to civil proceedings in the Court, including an appeal in Class 1 of the Court’s jurisdiction; they do not authorise amendment of documents that are not documents of the kind to which the provisions are directed, including, development applications (AQC Dartbrook at [259]-[263] and [265]).

30. However, upon the Court accepting, which it can as consent authority, the amendment to the DA to change the name of the applicant from Dual Property to Moo to reflect the true intention of the land owner, the need for an immediate change to the named applicant in the Class 1 appeal arises because, as s 8.7 of the EPAA makes plain, it is only the applicant to the DA who may appeal a determination of it to the Court.

31. In respect of the power contained in s 65(2)(b) of the CPA, in Greenwood v Papademetri [2007] NSWCA 221 Campbell JA observed that (at [33]-[36]):

33 The power that is conferred by section 65(2)(b) is purposive in its nature. It authorises the court to grant leave to a plaintiff to amend the originating process in whatever way is needed to correct a mistake in the name of a party to the proceedings. The words “whether or not the effect of the amendment is to substitute a new party” do not limit the width of that power. Rather, they make clear that the power can apply in some circumstances where the effect of the amendment is to substitute a new party, and can also apply in some circumstances where the effect of the amendment is not to substitute a new party. The precise order that is appropriate under section 65(2)(b) will depend upon what, in the circumstances of the particular case, is the particular mistake that there has been in the name of a party to the proceedings, and what needs to be done to correct that mistake.

34 Section 65(2)(b) does not confer on the court power to correct any and every mistake that has been made in the name of a party to the proceedings. It applies only to a mistake that, in the court’s opinion, is neither misleading, nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. In some cases where an amendment is sought under section 65(2)(b) there may be considerable argument about whether a mistake in the name of a party has those characteristics. However, no such argument was put to us on the present appeal.

35 Even if a proposed amendment is one whose effect could be described by the language in para (b) of section 65(2), there is still a discretion in the court whether to permit that amendment. Section 65(2) contemplates that any amendment made under section 65(2) will be effected through leave granted under section 64(1)(b). Thus, the discretion of the court concerning whether to grant leave to amend under section 65(2) needs to be exercised in accordance with section 64(2). Section 64(2) itself requires the court to exercise its discretion in accordance with section 58, which in turn requires the court to have regard to the provisions of sections 56 and 57. Even if it were not inherent in the grant of a discretion to a judicial officer, section 58(2)(b) enables the court to have regard, in an application for an order under section 65(2)(b), to matters such as the knowledge that the person proposed to be added as a party had of the proceedings during the limitation period, and the nature and degree of any prejudice that the person sought to be added would suffer if the order were made.

32. The Court therefore has power pursuant to ss 64(1) and 65(2)(b) of the CPA, or r 19.2 of the UCPR, to amend the Class 1 application to remove Dual Property as the applicant and substitute Moo in lieu thereof.

33. In the present case, the affidavit evidence makes it tolerably clear that the substitution of Moo as the applicant in the Class 1 appeal rectifies a mistake made by the town planner in the lodgement of the DA that was subsequently maintained in the appeal, is not misleading, and causes no doubt as to the identity of the person intended to be made a party. Moreover, given that the Council does not oppose the amendment of either the DA or the Class 1 application, it causes no prejudice to any entity if Moo is substituted as the applicant in the appeal.

34. The making of the amendment to the Class 1 application will allow the issues raised in the matter to be determined, will correct an error in the proceedings, and will avoid the multiplicity of process that would arise if Moo was compelled to lodge a fresh DA in respect of an identical development proposal, with the inevitable deemed refusal of that DA by the Council and subsequent Class 1 appeal to this Court. The overriding purpose of the CPA is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 56 of the CPA), and in my view, the amendment of the DA and the Class 1 application to regularise the name of the applicant will achieve this objective.

The DA and the Class 1 Application are Amended

35. The orders of the Court are therefore that it:

36. approves the application for amendment of DA-24-00483 by removing “Dual Property Group Pty Ltd” as the applicant and substituting “Moo Corporation Pty Limited” in lieu thereof;

37. grants leave to amend, and amends, the Class 1 application filed on 21 October 2024, by removing “Dual Property Group Pty Ltd” as the applicant and substituting “Moo Corporation Pty Limited” in lieu thereof; and

38. lists the matter before the Registrar on 13 February 2026, for further directions and the allocation of a hearing date.

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